Salas v. Fluor Daniel Servs. Corp.

• Decision Date: 29 December 2020
• Docket Number: NO. 14-18-01103-CV,14-18-01103-CV
• Citation: 616 S.W.3d 137
• Parties: Rogelio SALAS, Appellant v. FLUOR DANIEL SERVICES CORPORATION, Appellee
• Court: Texas Court of Appeals

616 S.W.3d 137

Rogelio SALAS, Appellant

v.FLUOR DANIEL SERVICES CORPORATION, Appellee

NO. 14-18-01103-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed December 29, 2020

Patrick Mason Dennis, Michael P. Doyle, Jeffrey Avery, Houston, for Appellant.

Ashlee Grant, Dennis P. Duffy, Houston, for Appellee.

Panel consists of Justices Christopher, Bourliot, and Hassan

Meagan Hassan, Justice

Rogelio Salas appeals the trial court's grant of no-evidence and traditional summary judgment in favor of Fluor Daniel Services Corporation ("Fluor"), contending in five issues that the trial court erroneously granted summary judgment on his workers' compensation retaliatory discharge claim under Texas Labor Code section 451.001(1) and (3). We affirm in part and reverse and remand in part.

BACKGROUND

Salas started working for Fluor in 2015 as a pipefitter at the Chevron Phillips Chemical Company's ("CP Chem") USGC Ethylene construction project. Salas understood the temporary nature of the project and that Fluor had a reduction of force policy as the project progressed. Salas also understood that Fluor employees were provided "workers' compensation insurance coverage from Property/Casualty Insurance Company of Hartford through CP Chem's Owner Controlled Insurance Program ("OCIP") to protect [Fluor employees] in the event of work-related injury."

On January 9, 2017, while walking to a safety meeting, Salas "stepped on uneven ground causing his left knee to twist and he fell against a pipe support." Salas contacted his foreman and supervisor, Oliver Alanis, about the incident. Alanis in turn notified Fluor's safety department and took Salas to the safety office. The Health, Safety, Environment Department ("HSE") Supervisor Michael Fish took Salas to the doctor. According to the Incident Report of January 9, 2017, Salas "was taken to medical. While at medical[,] he was evaluated, determined to have no injuries, and no treatment was given." Salas was released to return to work. Two days later, Salas again complained of pain after attempting to climb stairs and was taken to a doctor to be evaluated. The doctor gave him ibuprofen and released Salas back to work. Salas continued to complain of knee pain and was assigned to the safety office. He reported to the safety office every day and "sat there all day" until he was terminated; he did not perform any work during this time. The Daily First-Aid Records of January 12-13, 2017 state that Salas had left knee pain and was given ice therapy and ibuprofen. The January 16, 2017 Daily First-Aid Record states that Salas still had knee pain.

On January 16, 2017, Fish emailed the "Employers First Report of Injury or Illness" relating to Salas's January 9, 2017 injury to CP Chem employees and a Fluor HSE supervisor. CP Chem sent the same injury report to its insurance administrator. On January 19, 2017, a claims analyst for CP Chem's third-party insurance administrator was assigned to Salas's workers' compensation claim and requested additional information from Fluor about whether Salas had returned to work and what compensation he was receiving. The next day, Fluor responded, stating that "Salas has returned back to work at full duty. He is receiving full wages and hours as before the injury. ... He is hourly. We do not owe him any partial benefits. The incident is not a lost time[.] He received treatment at Bayside Urgent Care."

Later that day, Fluor placed Salas on its reduction of force list. The list contained Salas's name and work position; it stated the date he was chosen for the reduction of force as January 20, 2017 and time as 2:30 p.m.; it stated the effective date as January 23, 2017. The list contained three signature rubrics. The first rubric, "Reviewed by: Human Resources Representative", was blank. The second rubric, "Reviewed by: Superintendent/Designee", was signed by Chris Bennett (Fluor's senior construction manager) and by Richard Aycock (Fluor's general superintendent who reported to Chris Bennett) on January 20, 2017. The third rubric, "Reviewed by: Site Manager/Designee", was blank. According to Aycock's deposition testimony, he would be informed by management that a reduction of force was necessary and that the supervisors in charge of a crew were expected to decide which employee would be subject to the reduction. He testified that crew supervisors are trusted to decide which employee is subject to reduction based on company-established factors. Aycock testified that the supervisor "passes the name of the individual" and Aycock reviews and approves the reduction without evaluating the supervisor's decision. Aycock claimed that Salas's immediate supervisor Alanis made the decision to lay off Salas.

On January 23, 2017, Alanis notified Salas that he was being terminated. Senior Human Resources Specialist Adrian Stockton conducted an exit interview with Salas that same day, and Salas signed an Employee Separation Form, which stated Salas was being terminated because of a reduction of force. The only other person who signed the separation form was Stockton. While the project manager's signature was required for approval, only "N/A" appears on the form.

On January 26, 2017, Salas hired an attorney, who filed a workers' compensation claim that same day for Salas's January 9, 2017 injury. Salas filed suit in May 2017, alleging a workers' compensation retaliatory discharge claim under Texas Labor Code section 451.001 and requesting actual and punitive damages.

Fluor filed a traditional and no-evidence motion for summary judgment on Salas's claim. Fluor argued it is entitled to summary judgment because (1) "there is no evidence of a causal connection between Salas' workers' compensation claim and his termination"; (2) "there is no evidence that the layoffs at the project were a mere pretext for retaliation"; and (3) there is no evidence to support an exemplary damages award for Fluor's alleged retaliatory discharge. Fluor also argued it was "independently entitled to summary judgment because Salas was not physically able to perform the essential functions of his job at the time of his termination." Salas filed a summary judgment response, and Fluor filed a reply thereto.

The trial court held an oral hearing on Fluor's summary judgment motion on September 28, 2018. After the hearing, Salas filed a "Post-Hearing Brief in Response to [Fluor]'s Motion for Summary Judgment", in which he argued that he "met the standard for a protected act based on Labor Code § 451.001(3)" because he instituted or caused to be instituted a proceeding under the workers' compensation statute. Salas argued that Fluor "evade[d] the holding" of applicable caselaw that supported his argument and erroneously argued inapplicable caselaw to support its summary judgment motion. Fluor filed a response to Salas's brief, objecting to the brief as late-filed and asserting that Salas's cited caselaw in support of his claim under section 451.001(3) is no longer applicable.

The trial court signed an order granting Fluor's summary judgment motion and dismissing Salas's claim with prejudice on September 28, 2018. Salas filed a motion for new trial, to which Fluor responded. The motion was overruled by operation of law, and Salas filed a timely notice of appeal.

ANALYSIS

On appeal, Salas challenges the trial court's grant of summary judgment in favor of Fluor on his workers' compensation retaliatory discharge claim raising five issues. We address each issue in turn.

I. Standard of Review

Where, as here, the trial court's summary judgment does not state the grounds for its ruling, we affirm the judgment if any of the grounds advanced is meritorious. Carr v. Brasher , 776 S.W.2d 567, 569 (Tex. 1989) ; see also Muller v. Stewart Title Guar. Co. , 525 S.W.3d 859, 868 (Tex. App.—Houston [14th Dist.] 2017, no pet.). We review a summary judgment de novo. Lujan v. Navistar, Inc. , 555 S.W.3d 79, 84 (Tex. 2018). A party seeking summary judgment may combine a request for summary judgment under the no-evidence standard with a request under the traditional summary judgment standard in a single motion. Binur v. Jacobo , 135 S.W.3d 646, 651 (Tex. 2004) ; Cardenas v. Bilfinger TEPSCO, Inc. , 527 S.W.3d 391, 398 (Tex. App.—Houston [1st Dist.] 2017, no pet.).

In a no-evidence motion for summary judgment, the movant asserts that there is no evidence of one or more essential elements of the claims for which the nonmovant bears the burden of proof at trial. See Tex. R. Civ. P. 166a(i) ; Timpte Indus., Inc. v. Gish , 286 S.W.3d 306, 310 (Tex. 2009) ; Drake Interiors, Inc. v. Thomas , 544 S.W.3d 449, 453 (Tex. App.—Houston [14th Dist.] 2018, no pet.). The trial court must grant the motion unless the nonmovant produces summary judgment evidence raising a genuine issue of material fact. Tex. R. Civ. P. 166a(i). The nonmovant is "not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements." Hamilton v. Wilson , 249 S.W.3d 425, 426 (Tex. 2008) (per curiam) (internal quotation omitted). A fact issue exists if the nonmovant brings forth evidence that would enable reasonable and fair-minded jurors to differ in their conclusions. See City of Keller v. Wilson , 168 S.W.3d 802, 822 (Tex. 2005).

For a traditional summary judgment motion, the movant must demonstrate that no genuine issues of material fact exist and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c) ; M.D. Anderson Hosp. & Tumor Inst. v. Willrich , 28 S.W.3d 22, 23 (Tex. 2000) (per curiam). To be entitled to traditional summary judgment, a movant must conclusively negate at least one essential element of each of the nonmovant's causes of action or conclusively establish each element of an affirmative defense. Am. Tobacco Co., Inc. v. Grinnell , 951 S.W.2d 420, 425 (Tex. 1997). "Evidence is conclusive only if reasonable people could not differ in their conclusions." City of Keller , ...